The Government has recently released a draft of the new Employer’s Guide to Right to Work Checks. This Guidance will become effective from 6 April 2022, when a number of significant changes to the right to work requirements come into force.
We reported on these changes in detail in our previous blog here.
The new draft Guidance provides some much welcome clarification for employers on what these new changes will mean in practice, particularly around using Digital Identity Verification via Identity Service Providers (IDSPs).
How will using IDSPs work in practice?
The Guidance clarifies key points regarding the use of IDSPs for undertaking right to work checks:
- IDSPs will only be able to verify valid British and Irish passports (including Irish passport cards). You will not be able to use an IDSP to check expired documents (or any other form of ID document) to establish a right to work;
- The employer retains important legal responsibilities whilst using an IDSP; this is not “outsourcing” the entirety of the right to work checking process to the IDSP. For example:
- Under the Guidance, employers must carry out their “own due diligence to satisfy themselves to a reasonable belief that their chosen IDSP has completed the check correctly in the prescribed manner” in accordance with the relevant Guidance. Employers will remain liable for the civil penalty where employees are working illegally, and it is “reasonably apparent” that the check has not been completed properly by the IDSP;
- Employers must satisfy themselves that the photograph and biographic details (such as the date of birth) are consistent with the individual presenting themselves for work (in other words that the document has not been presented by an imposter); and finally
- Employers will also need to account for any discrepancies in “names” where they differ between the documents.
Employers will not have a legal defence to any illegal working penalties “where it is reasonably apparent that the prospective employee is not the individual linked to the identity which was verified by the IDSP”.
- Employers cannot insist that employees submit to an IDSP check. They must ensure alternative options are available for example where employees do not hold a valid passport or simply do not wish to use an IDSP.
There is no further information regarding the costs associated with IDSPs; this will presumably be set by each individual provider.
What should employers do now?
- Ensure they understand the new Right to Work requirements, in particular the changes to the acceptable documents which can be used for a manual check. (For example, from 6 April 2022, Biometric Residence Permits, Biometric Residence Cards and Frontier Worker Permits will need to be checked using the Home Office’s online checking service and it will no longer be permitted to check physical versions of these documents.)
- Decide whether they would like to use IDSPs for checking British/Irish passports. However, given that Covid-adjusted checks remain available until 30 September 2022, we anticipate many employers will defer making a final decision on using IDSPs until closer to this deadline. In practice, employers are unlikely to want to incur the costs of using an IDSP whilst it remains feasible to check British/Irish passports using the Covid-adjusted option.
- If you do intend to use an IDSP, use the time from now until 1 October 2022 to select a suitable provider, assess the costs, build relationships with them and understand/check their processes.
- If using an IDSP, you will need to train staff on the outcomes of the IDSP checks, how they will demonstrate that the check has been undertaken correctly and, importantly, the additional steps needed to establish a valid right to work check.
- If you intend to use an IDSP, you will also need to ensure the option for manual checks remains (and that your employees understand how to conduct these checks), given that you are not permitted to force employees to submit to an IDSP check.
- Review and amend your internal processes and right to work checking policies to reflect the new requirements. This will be particularly important if you are a Registered Sponsor under the Points Based system; we are increasingly finding that the Home Office expects employers to be able to provide formal, documented Right to Work policies/procedures as evidence of compliance with their immigration law responsibilities.
- Your policies should also address data security and retention issues to ensure compliance with GDPR/data protection requirements.
- You will need to train relevant staff on the new rules and any new policies and procedures in advance of 6 April 2022, and again in advance of 1 October 2022 when the Covid-adjusted checks cease to be valid. This is a fast-approaching deadline so employers need to take action now.
If you have any queries regarding the new rules or need help with preparing/updating your policies and procedures or providing training to staff on how they will operate in your business, please contact Laura Darnley or any member of our team of expert business immigration solicitors.
